"Cross-Border Implications": Centre's Counter To Plea On Reopening Markaz

The case registered in relation to the alleged violation of COVID-19 protocols at Nizamuddin Markaz -- where the Tablighi Jamaat congregation was held in March last year amid COVID-19 pandemic -- is serious and has "cross borders implications", the centre told the Delhi High Court which remarked on Monday that the premises can't be kept locked forever.

Justice Mukta Gupta, who was hearing the Delhi Waqf Board's plea to re-open the markaz, which has remained shut since March 31 last year, questioned the centre as to how long it intended to keep it locked, saying it can't be "kept forever".

Counsel for the centre stated that a legal action to re-open the markaz can only be initiated by the lessee of the property and a resident of the premises has already filed a plea to hand over the residential portion of the markaz, which is pending final adjudication before another judge of the high court.

"Only on legal view, the petition can be disposed of. The Waqf Board has no power to overstep the lessee," said the counsel for the centre Rajat Nair.

However, the judge said, "some persons were in possession of the property. Due to the pandemic, an FIR was registered... (and) you take possession as case property. It has to be handed over. It can't be that the property is kept forever (subject to court orders). What is your stand on the facts of the case? You tell me from whom you took it. How long will you keep it locked as case property?"

The court issued notice on an application filed by a member of the managing committee of the markaz in question for his impleadment and allowed the Waqf Board to file its reply to the centre's affidavit and posted the matter for next hearing on November 16.

Senior counsel Ramesh Gupta, representing the board, argued that the petition has remained pending for more than a year-and-a-half and clarified that his petition pertained to the release of the entire markaz property, comprising the masjid, the madarasa and the residential portion.

"Now they should release the property to us. UOI has no role to play," he stated.

Senior counsel Salman Khurshid, representing the intervening member, added that he is "on the same page as the Waqf" and when allowed to be re-opened, the markaz would adhere to the relevant protocols.

In its affidavit affirmed by the Deputy Commissioner of Police, Crime, the centre has maintained that it is "necessary and incumbent" to "preserve" the Markaz property as the investigation in the case registered for violation of the COVID-19 protocols has "cross borders implications and involves nation's diplomatic relationship with other countries".

"As such, in view of the seriousness of the case which has trans-border implication and diplomatic consideration, it is just and necessary that the case property in such a case is preserved in letter and spirit so that due process of law in dealing with such cases is followed," the affidavit said.

"Since about 1300 foreigners were found to be residing in the said premises and cases against them have cross borders implications and involves nation's diplomatic relationship with other countries, it is necessary and incumbent on the part of the Respondent to preserve the said premises for the purpose of Section 310 of Cr.PC," it added.

It said since the issue of keeping the markaz premises locked is pending adjudication before another bench, it "cannot be agitated by the petitioner (Waqf) in guise of its power of superintendence".

It added that the right to administer the markaz is subject to law, public order and health and that the authorities have "always relaxed the entry norms upon a proper application made by the person administering the religious affair" as and when the organisers apply for a relaxation in view of any ensuing religious festival or for any other reason.

On April 15, the court had allowed 50 people to offer namaz five times a day at Nizamuddin Markaz during Ramzan, saying there is no direction in the Delhi Disaster Management Authority (DDMA) notification to close down places of worship.

The board, in its plea filed through advocate Wajeeh Shafiq, contended that even after unlock-1 guidelines permitted religious places outside containment zones to be opened, the markaz -- comprising the Masjid Bangley Wali, Madarsa Kashif-ul-uloom and attached hostel -- continues to be locked up.

It has further contended that even if the premises was part of any criminal investigation or trial, keeping it "under lock as an out of bound area" was a "primitive method" of enquiry process.

Several FIRs have been registered under the Epidemic Diseases Act, the Disaster Management Act, Foreigners Act and various provisions of the penal code in connection with the Tablighi Jamaat event held at the markaz and the subsequent stay of foreigners there during the COVID-19 lockdown last year.